TABLE OF CONTENTS

List of Abbreviations....
Index of Authorities.....
Supreme Court Decisions.....
Books and Articles...
Statutes

2
3
3
4
4

Dictionaries..
Online references.

5
5

Statement of Jurisdiction..
Synopsis of Facts..
Issues Raised
Summary of Arguments...
Prayer..

6
7
8
9
14

LIST OF ABBREVIATIONS

A.I.R.
Art.
Ed.
Honble
Ltd.
Ors.

All India Reporter

Article
Edition
Honorable
Limited
Others

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SC
SCC
Sr.
&
U.O.I
v./vs.
S.C.R.
u/s
w.e.f.
C.M.
MLA
W.P.

Supreme Court
Supreme Court Cases
Senior
And
Union of India
Versus
Supreme Court Reporter
Under Section
With Effect From
Chief Minister
Member of Legislative Assembly
Writ Petition

INDEX OF AUTHORITIES

Supreme Court Decisions1. Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 412
2. Ravi S Naik v. Union of India AIR 1994 SC 1558
3. G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) 2 SCC 353
4. Ravi S Naik v. Union of India AIR 1994 SC 1558
5. Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007) 4 SCC 270
6. Shri Rajeev Ranjan Singh Lalan vs. Dr. P.P. Koya, JD(U), (January 9, 2009)
7. Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008)
8. Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress (Sept 10, 2008)
9. Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008)
10. Durga Shankar Mehta vs raghuraj Singh (1955) I SCR 267
11. Brundaban Naik vs Election Commission of India AIR 1965 SC 1892
12. Indira Nehru Gandhi vs Rai Narain, AIR 1975 SC 2299
13. Dr Kashinath G Jhalmi Vs Speaker, Goa Legislative Assembly (1993) 2 SCC 703
14. Mannadi satyanarayan Reddy vs Andhra Pradesh Legislative Assembly (AP HC) 1994
15. Kihota Hollohon vs. Zachilhu and Others, 1992 Supple (2) SCC 65
16. Mian Bashir Ahmed v. State of J&K,AIR 1982 J&K p.26
17. Jagjit Singh vs State Of Haryana & Ors, AIR 2004, SCC 287
18. B.Muhammedkunhi vs K.Abdulla (Sept 30, 2010) W.P.(C) Nos.28051 & 28056 of 2010-F
19. S. Ramachandran, M.L.A. vs Hon'Ble Speaker Of The Tamil Nadu ... on 21 March, 1994
20. Ripusudan Dayal & Ors vs State of M.P. & Ors (Feb 25, 2014) SC W.P. (CIVIL) NO. 613

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21. Rameshwar Prasad & Ors vs Union Of India & Otrs (24 January, 2006) SC WP (civil) 257
22. Narsingrao Gurunath Patil & Ors vs Arun Gujarathi, Speaker And Ors. (29 July, 2002)
23. Dr. Mahachandra Prasad Singh vs Chairman, Bihar Legislative (27/10/2004) SC W.P. (civil)
322 of 2004
24. Gouranga Chatterjee vs The State Of West Bengal & Ors (July 8, 2013)W.P. 4887 (W)
25. Kunwar Pranav Singh Champion & ors vs Speaker Legislative Assembly & ors (9 May,

2016) THE HIGH COURT OF UTTARAKHAND W.P. 826 of 2016 (M/S)

26. D. Sudhakar, Venkataramanappa & ors vs. speaker K.G. Bopaiah Kanataka Legislative
Assembly, High Court of Karnataka (Feb 142011)

Books, Articles and Reports

1. Shukla V N. , Constitution of India Tenth Edition
2. Jain M.P., Indian Constitutional Law Fifth Edition Volumes I and II Basu, Durga Das,
Commentary on the Constitution of India Eighth Edition
3. Granville Austin: The Indian Constitution: Cornerstone of a Nation (1966) Statement of Objects
and Reasons appended to the Constitution (Fifty-second Amendment) Bill, 1985(Bill No. 22
of 1985) cited from http://indiacode.nic.in/coiweb/amend/amend52.htm
4. Report of the National Commission to Review the Working of the Constitution (Vol. I, March
2002) p.168

Statutes 1. The Constitution of India (1950)

2. The Representation of Peoples Act1951

Dictionaries1. P. Ramanatha Aiyars Concise Law Dictionary (4th ed. 2012) New Delhi: Lexis Nexis
Butterworths

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2. Whartons Law Lexison (15th ed. 2011) New Delhi: Universal Law Publishing Co. Pvt.
Ltd.
3. Webster, New Collegiate Dictionary 742 (Indian edn. 1983) cited from J. K. Mittal, Antidefection Act: Comment on its Constitutionality (1987) 3 SCC (Jour) 25`at 289

Online references1. www.westlawindia.com

2. www.manupatra.com
3. www.the-laws.com
4. www.scconline.com
5. www.jcconline.com
6. https://indiankanoon.org/
7. http://www.lexisnexis.in/
8. http://www.legalserviceindia.com/
9. https://www.loc.gov/law/help/constitutional-court-cases/india.php
10. http://legalservicesindia.com/forum/#.V9jeyFt97Z4

STATEMENT OF JURISDICTION

The petitioners approach the Honorable Supreme Court of India under Article 32 of the
Constitution of India, 1950. The respondents respectfully submit to this jurisdiction invoked by
the petitioners.

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SYNOPSIS OF FACTS
Shri Ramnath Banerjee is the democratically elected Chief Minister of State of West Bengal
(C.M. here after) as per section 5 of the representation peoples act, 1951. His party has 159 MLAs
strength in 294 member State Assembly. The combined opposition strength is 135. One year after
assuming office, dissidence was developed in ruling party MLAs as the Chief Minister could not satisfy
some of the MLAs who are aspiring for Minister Ships.
Shri Shekhar Mukherjee, one of the rebellious MLA always criticized the Chief Minister and his
government. He publicly supported the opposition leader and used to attend opposition party leader's
meetings without due permissions from party authorities. Shri Ramnath Banerjee C.M., wrote a letter to

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Speaker of the House to disqualify Shri Shekhar Mukherjee on the inference drawn from the conduct that
he has voluntarily giving up the membership of the political party which he belongs.
Shri Rajendra Patil, another dissident wrote a letter requesting the Governor to call on the leader
of the other side to form the government. Shri Ramnath Banerjee also wrote a letter to the speaker to
disqualify him.
Shri Manohar Das an independent MLA switched his support to the opposition from the ruling
party. After withdrawing the support, other 16 dissident ruling partys MLAs maintained a camp against
the CM, Shri Ramnath Banerjee wrote a letter to Speaker to disqualify them ahead of the trust vote.
Meanwhile the Governor asked the CM to prove his majority on the floor of the House. The Governor
also directed the Speaker to maintain Status Quo on the house strength before the rebels withdrew the
support reducing the Government to a minority.
Aftermath, the Speaker went ahead and disqualified all the dissident 19 MLAs. Thus, the Speaker
disqualified the 16 rebel MLAs, along with MLAs Shekhar Mukherjee, Rajendra Patil and Manohar Das
under the provisions of the Anti - Defection Law as envisaged in the Tenth Schedule of the Constitution
of India. With this action, the Speaker has brought down the strength of 294 to 275. The ruling party
strength has been reduced from 159 to 140 and the combined opposition strength is 135 in the House. The
Chief Minister won the Floor Test.

ISSUES RAISED

The following issues are raised by aggrieved disqualified MLAs in present petition:
1. Shri Shekhar Mukherjee contended that he has freedom of speech and criticized his party leader
for the benefit of the party. Speaker's decision is autocratic and undemocratic.
2. Shri Rajendra Patil argued that he did not voluntarily give up party membership or resign hence
his disqualification is against the spirit of anti-defection law.
3. Shri Manohar Das contended that as an independent, he has the freedom to extend or withdraw
support to any government and his switching support doesnt attract any defection.

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4. Sixteen disqualified ruling party MLAs argued that they only demanded change of leadership but
not defected. Their disqualification order is the misuse of Anti Defection Law by the Speaker.

SUMMERY OF ARGUMENTS

1. Shri Shekhar Mukherjee contended that he has freedom of speech and criticized his party
leader for the benefit of the party. Speaker's decision is autocratic and undemocratic.
It is humbly submitted to court that the issue whether the right to freedom of speech and expression 1 is
curtailed by Tenth Schedule of constitution2 was taken up by Supreme Court in Kihota Hollohon Case3.
The court observed that: The provisions do not subvert the democratic rights of elected members in
Parliaments and state legislatures. It does not violate their conscience. The provisions do not violate any
right or freedom under Articles 1054 and 1945 of the constitution.
The first challenge to the anti-defection law (tenth schedule) 2 was made in the Punjab and
Haryana high court in Parkash Singh Badal and others v. Union of India and others 6. One of the grounds

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on which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution
violated Article 1054 of the Constitution, wherein the court held: So far as the right of a member under
Article 1054 is concerned, it is not an absolute one and has been made subject to the provisions of the
Constitution and the rules and standing orders regulating the procedure of Parliament. The framers of the
Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of
the Parliament and the same can be regulated or curtailed by making any constitutional provision, such as
the 52nd Amendment. The provisions of Para 2(b) cannot, therefore, be termed as violative of the
provisions of Article 1054 of the Constitution (Para 28).
In case of Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress7, the INC
alleged that Shri Bishnoi often dissented from, and criticized the Congress government publicly, and had
demanded the dismissal of the government in Haryana. The Speaker held that a person getting elected as a
candidate of a political party also gets elected because of the programs of the party. If the person leaves
the party, he should go back before the electorate.
In case Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP 8 it was alleged that Shri
Akhlaque joined the Samajwadi Party in a public meeting. It was alleged that at this 1meeting, Shri
Akhlaque had said that at heart, he had always been a member of the SP. The Speaker reasoned that there
is no reason why news clippings and stories in the media would be untruthful. The Speaker therefore held
Shri Akhlaque disqualified for having voluntarily given up membership of the BSP.
Here in present case, Petitioner Shri Shekhar Mukherjee misused right of freedom of speech 9
conferred by constitution. Petitioner Shri Shekhar Mukherjee contested election on party manifesto which
means he is agreed on party poll promises and conditions but after a year petitioner Shri Shekhar
Mukherjee developed erroneous intentions so he criticized government policies at open platform. But
1

Art 19 of The Constitution of IndiaProvisions as to disqualification on ground of defection of The Constitution of India

2.
3.
4.
5.
6.
7.

added in 52nd amendment ( in 1985)

Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 412
Art 105: Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof
Art 194: Powers, Privileges, etc., of the Houses of Legislatures and of the members and committees thereof
Parkash Singh Badal and others v. Union of India and others
Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress (Sept 10, 2008)
Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008)

8.

Art 19 of The Constitution of India

9.

Provisions as to disqualification on ground of defection of The Constitution of India added in 52 nd amendment ( in 1985)

10. Ravi S Naik v. Union of India11 AIR 1994 SC 1558

11. Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007) 4 SCC 270

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these concerns were not raised in party meetings. Along with these acts Petitioner Shri Shekhar
Mukherjee also supported opposition party leaders and attended their meetings which were publically
known and it was against party discipline. It means Petitioner Shri Shekhar Mukherjee had right of
freedom but he has misused it by supporting rivals which were detrimental to ruling party. These acts
clearly indicate intentions of voluntarily resignation from ruling party 2membership. On these grounds
Petitioner Shri Shekhar Mukherjee was held for defection and speaker used his right to disqualify
conferred by para 2(a) tenth Schedule of constitution 10. Hence speakers decision cannot be said autocratic
and undemocratic.
2. Shri Rajendra Patil argued that he did not voluntarily give up party membership or resign
hence his disqualification is against the spirit of anti-defection law.
Honorable supreme court, in case of Ravi S Naik v. Union of India 11 stated that, the words voluntarily
giving up membership have a wider meaning. An inference can also be drawn from the conduct of the
member that he has voluntarily given up the membership of his party.
Referring to above words, the honorable supreme court in Rajendra Singh Rana Case and ors vs
Swami Prasad Maurya and ors12 held that the act of giving a letter requesting the governor to call upon
the leader of the other side to form a government, itself would amount to an act of voluntarily giving up
the membership of the party on whose ticket the said members had got elected. In this case, in 2002
assembly elections in the state of Uttar Pradesh, a coalition government formed since none of the parties
secured a majority. In the middle of 2003, a unanimous decision was taken by the cabinet to dissolve the
assembly. After the cabinets decision and before the resignation of the leader of the coalition
government, thirteen members from BSP met the governors and requested him to invite the leader of the
opposite party to form government. It was in this context court held above.
Five independent members of the Karnataka Legislative Assembly 13 who had declared their support to
the BJP government, and were inducted into the Council of Ministers, were disqualified by the Speaker of
the Assembly under Paragraph 2(2) of the Tenth Schedule to the constitution 14, factually following their
representation

to

the

Governor

that

they

withdrew

their

support

to

the

government.

Paragraph 2(2) of the Tenth Schedule disqualifies an independent member of a house/assembly who joins
any political party after election on the ground of defection: 2(2): An elected member of a House who
has been elected as such otherwise than as a candidate set up by any political party shall be disqualified
for being a member of the House if he joins any political party after such election.

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H3ere also conduct of petitioner Shri Rajendra Patil to call governor to request opposition party to
form government on low confidence motion against ruling party 15 is considered indiscipline. Calling for
floor test against owns ruling party and helping opposition party are sufficient ground to be considered as
defection under para 2(b) and voluntarily give up party membership under para 2(a). On these grounds
speaker utilized his power bestowed under para 2(a) of tenth schedule of constitution of india 14.
3. Shri Manohar Das contended that as an independent, he has the freedom to extend or
withdraw support to any government and his switching support doesnt attract any
defection.
An independent member is an elected member of the house who does not belong to any political party.
Member is elected because of their personal image among the people of the respective constituency. So he
must maintain the image shown to electoral and abstains himself from favoring a particular party.
In Jagjit Singh v State of Haryana 16 the legislators were elected as Members of Assembly as
independent candidates. Later they joined a political party and news of their joining was reported in print
as well as electronic media. That fact was allegedly admitted by members in an interview given to a TV
news channel. Thereafter those members were disqualified from being members of Assembly by Speaker.
It was challenged. The Supreme Court held: when an independent member is alleged to have joined a
political party the test to be applied is whether the member has given up his independent character on
which he was elected. This has to be determined on appreciation of material on record and conduct of the
member of the Speaker. No hard and fast rule can be laid down when the answer is dependent on facts of
each case. The substance and spirit of anti-defection provisions are the guiding factors. Disqualification
of these members by speaker was upheld, despite the allegation of procedural defect in enquiry. Supreme
Court also clarified one more question in Jagjit Singh case: Where a sole member of a political party in
an Assembly joins another political party, he cannot get protection of paragraph 3 of Tenth Schedule of
the Constitution and will be disqualified from being member under paragraph 2 of the Tenth Schedule of
the 4Constitution.17

313 D. Sudhakar, Venkataramanappa & ors vs. speaker K.G. Bopaiah Kanataka Legislative Assembly, High Court of Karnataka
(Feb 142011)14 Provisions as to disqualification on ground of defection of The Constitution of India added in 52 nd amendment
( in 1985)
15

Art 164

16

Jagjit Singh vs State Of Haryana & Ors, AIR 2004, SCC 287

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Similar circumstances are also present hereby. In present case petitioner Shri Manohar Das, favored a
particular party while opposing a particular party and lobbying along with other unsatisfying dependent
MLAs. So Shri Manohar Das was held to be liable for defection and speaker acting under statute 17
disqualified petitioner cannot be said wrong.
4. Sixteen disqualified ruling party MLAs argued that they only demanded change of
leadership but not defected. Their disqualification order is the misuse of Anti Defection Law
by the Speaker.
Above said disqualified ruling party MLAs were camping against democratically elected CM and they
got elected under leadership of CM. So somehow CM candidate and partys policies and vision had
important role in their victory. Now they defied partys whip (code of conduct) and also want to be in
party membership which is not supported by their conduct.

Below cases also resulted with similar

actions.
In case of Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad 18, Shri Prasad defied a party
whip requiring him to be present in the House. In his defense, he denied that any whip was issued or
served. The Speaker held that in view of the fact that there is evidence to show that the whip had been
delivered to Shri Prasads house, and had been duly received, it cannot be said that Shri Prasad had no
knowledge of the whip.
To the extent that the provisions grant finality to the orders of the Speaker, the provision is valid.
However, the High Courts and the Supreme Court can exercise judicial review under the Constitution.
Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen.519
In case of Shri Rajeev Ranjan Singh Lalan vs. Dr. P.P. Koya 20, Dr. Koya defied a party whip
requiring him to be present in the House and vote against the Motion of Confidence for the government.
He claimed he was too ill to be present in the House. The Speaker concluded that Dr. Koya abstained
from voting by remaining absent, and the evidence of the illness is not sufficient to conclude that he was
so ill that he could not be present in the House. When can it be said that a party member has deliberately
defied a party whip.
417 Provisions as to disqualification on ground of defection of The Constitution of India added in 52 nd amendment ( in 1985)18
Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008).

519 Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 41220 Shri Rajeev Ranjan Singh Lalan vs. Dr. P.P. Koya, JD(U),
(January 9, 2009)

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PRAYER

In the light of the facts stated, arguments advanced and authorities cited the respondent, humbly
prays before the honorable court, to be graciously pleased to:

1. Quash the writ petition filed by the petitioner in the Honble Court of Law since there is no violation of
fundamental rights of the member of legislative assembly.

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2. Maintain the status quo of the impugned order since there is no violation of the rights as alleged by the
petitioners.

And to pass any other order, which the court may deem fit in light of justice, equity and good
conscience. The counsel shall forever beseech this Honble Court for its humble consideration.
ALL OF WHICH IS HUMBLY PRAYED
Yashpal S
COUNSEL FOR THE RESPONDENT

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